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Hussein v Sydney Trains

Hussein v Sydney Trains

Case [2020] NSWCATAD 155 19 June 2020

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Hussein v Sydney Trains [2020] NSWCATAD 155
Hearing dates: 27 April 2020
Date of orders: 19 June 2020
Decision date: 19 June 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Britton, Principal Member
Decision:
The application made by Sydney Trains to dismiss the Complaint is refused.

Catchwords:
HUMAN RIGHTS — discrimination — whether power to dismiss complaint summarily under s 102 of the Anti-Discrimination Act 1977 should be exercised

WORDS AND PHRASES — meaning of “misconceived” and “lacking in substance”
EVIDENCE — drawing of inferences – permissible inference v conjecture and speculation
Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited: Alchin v Rail Corporation NSW [2012] NSWADT 142
BDK v Department of Education and Communities [2015] NSWCATAP 129
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Marshall v Prescott [2015] NSWCA 110
Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282
Commissioner of Corrective Services v Dezfouli [2008] NSWADTAP 85
Commissioner of Police v Mohamed [2009] NSWCA 432
Commissioner of Police, NSW Police Service v Estate Edward John Russell & Ors [2001] NSWSC 745
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; [1949] HCA 1
Director-General, Department of Community Services and Anor [2003] NSWSC 1241
Flounders v Millar [2007] NSWCA 238
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30
Kitoko v Sydney Local Health District [2017] NSWCATAD 209
Kitoko v Sydney Local Health District [2018] NSWCATAP 38
Langley v Niland & Anor (1981) 2 NSWLR 104
Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65
Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38
Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23
Purvis v New South Wales (2003) 217 CLR 92; [2003] HCA 62
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29
Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256
State of New South Wales v Whiteoak [2014] NSWCATAP 99
State of NSW (NSW Police Force) v Whitfield (EOD) [2012] NSWADTAP 27
Waters v Public Transport Corporation (1991) 173 CLR 349; [1991] HCA 49
Texts Cited: None cited
Category: Procedural and other rulings
Parties: Qurban Ali Hussein (Applicant)
Sydney Trains (Respondent)
Representation:
Counsel:
M Baroni (Respondent)
Solicitors:
Applicant (Self Represented)
Bartier Perry (Respondent)

File Number(s): 2019/00300885
Publication restriction: Nil

REASONS FOR DECISION

On 21 April 2018, while travelling by train between Town Hall and Merrylands, Mr Qurban Ali Hussein, his wife and two young children were subjected by another passenger to a torrent of abuse, including comments such as “go back to Afghanistan” and “all Muslims are terrorists”. According to Mr Hussein, when the train pulled into Granville train station he confronted his attacker who alighted from the train. He claimed that when he asked for assistance from the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hussein v Sydney Trains

Details

AGLC: Hussein v Sydney Trains [2020] NSWCATAD 155
Case: [2020] NSWCATAD 155
Decision Date: 19 June 2020

CaseChat Overview and Summary

In this case, the applicant, Sydney Trains, sought to summarily dismiss a complaint lodged by the respondent, Hussein, under section 102 of the Anti-Discrimination Act 1977. The complaint alleged discrimination based on Hussein’s race and disability. Sydney Trains contended that the complaint was misconceived and lacked substance, thereby justifying its dismissal. The primary focus of the court was to determine whether the summary dismissal power should be exercised in this instance and to interpret the phrases "misconceived" and "lacking in substance" within the context of the Act.

The court was required to consider the criteria for summarily dismissing a complaint under the Anti-Discrimination Act 1977, specifically whether a complaint is misconceived or lacking in substance. The court also had to determine the appropriate standard for evaluating the evidence presented and whether the permissible inferences drawn from that evidence could support a finding that the complaint lacked substance. Furthermore, the court needed to distinguish between permissible inferences and mere conjecture or speculation, to ensure that the decision to dismiss was based on sound legal principles.

In examining the evidence, the court found that the complaint, although perhaps not fully developed, contained sufficient elements to warrant further investigation. The court emphasised that a complaint should not be dismissed summarily unless it was clearly without merit. The phrases "misconceived" and "lacking in substance" were interpreted narrowly, requiring a strong showing that the complaint had no basis in fact or law. The court concluded that while the complaint might have room for improvement, it did not meet the threshold for summary dismissal. The permissible inferences drawn from the evidence did not support the conclusion that the complaint was entirely without merit.

Accordingly, the application by Sydney Trains to dismiss the complaint was refused. The court found that the complaint, while not perfect, was not so devoid of substance that it warranted dismissal at the preliminary stage. The court ordered that the complaint should proceed to a more detailed investigation under the Anti-Discrimination Act 1977.

Orders

Orders of the court

The application made by Sydney Trains to dismiss the Complaint is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Hussein v Sydney Trains [2020] NSWCATAD 155

Most Recent Citation

Chen v Commissioner NSW Police Force [2020] NSWCATAD 245

Cases citing this decision · 2 of 2 shown

Gyawali v Peniazeff Pty Ltd t/as Polaris Real Estate
[2021] NSWCATAD 139 Para 22

…s have been provided to the Applicant on different terms to another person pursuant to s 19(b) of the AD Act. As discussed in Hussein v Sydney Trains [2020] NSWCATAD 155 at [43], this could be a matter of inference rather than of direct evidence:…
Chen v Commissioner NSW Police Force
[2020] NSWCATAD 245 Para 23

…cause the conduct about which Mr Chen complains does not involve the provision of “services”. In the recent decision of Hussein v Sydney Trains [2020] NSWCATAD 155 at [20]-[38], I considered the meaning of the term “services” in s 19 of the Act and the relevant authorities. I adopt that summary in so far as it is rele…

View all 2 citing cases →

Cases cited in this decision · 23 of 23 shown

Kitoko v Sydney Local Health District
[2017] NSWCATAD 209 Para 39

…Sydney Trains, citing in support, Kitoko v Sydney Local Health District [2017] NSWCATAD 209 at [37], contends that even if the conduct about which Mr Hussein complains is capable of being characterised as services, it falls outside the scope of s 19(a) of the Act because at best it would amount to a failure to provide…
Chalker v Murrays Australia Pty Ltd
[2016] NSWCATAD 282 Para 7

…k [2007] NSWCA 23 at [45]; BDK v Department of Education and Communities [2015] NSWCATAP 129 at [63]; Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22]) and the term “misconceived” to mean a “misunderstanding of legal principle” ( Alchin v Rail Corporation NSW [2012] NSWADT 142 ( Alchin ) at [26]).…
Marshall v Prescott
[2015] NSWCA 110 Para 56

…ng that a finding of causation may be made in the absence of direct evidence, citing Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Marshall v Prescott [2015] NSWCA 110 at [83], Sydney Trains points out that even if “[t]he circumstances appearing in evidence give rise to a reasonable and definite inference: they must…
State of NSW (NSW Police Force) v Whitfield
[2012] NSWADTAP 27 Para 21

…Appeal Panels of the ADT in Commissioner of Corrective Services v Dezfouli [2008] NSWADTAP 85; State of NSW (NSW Police Force) v Whitfield (EOD) [2012] NSWADTAP 27; and by an Appeal Panel of NCAT in State of New South Wales v Whiteoak [2014] NSWCATAP 99.…
Alchin v Rail Corporation NSW
[2012] NSWADT 142 Para 7

…NSWCATAD 282 at [22]) and the term “misconceived” to mean a “misunderstanding of legal principle” ( Alchin v Rail Corporation NSW [2012] NSWADT 142 ( Alchin ) at [26]).…
Commissioner of Police v Mohamed
[2009] NSWCA 432 Para 20

…ct about which he complains falls within one or more substantive provisions of the Act. As explained by Basten JA in Commissioner of Police v Mohamed [2009] NSWCA 432 ( Mohamed ) at [23], the underlying structure of the Act is “not to prohibit all forms of discriminatory conduct, even where such conduct is antithet…
Commissioner of Corrective Services v Dezfouli
[2008] NSWADTAP 85 Para 21

…Police Service v Estate Edward John Russell & Ors [2001] NSWSC 745; by Appeal Panels of the ADT in Commissioner of Corrective Services v Dezfouli [2008] NSWADTAP 85; State of NSW (NSW Police Force) v Whitfield (EOD) [2012] NSWADTAP 27; and by an Appeal Panel of NCAT in State of New South Wales v Whiteoak [2014] NSWCA…
Flounders v Millar
[2007] NSWCA 238 Para 57

…nce to prove causation Mr Hussein must show that the circumstances raise the more probable inference in favour of what is alleged: Flounders v Millar [2007] NSWCA 238 at [35] per Ipp JA, Handley AJA agreeing.…
The Owners Corporation of Strata Plan 4521 v Zouk
[2007] NSWCA 23 Para 7

…ke the term "lacking in substance” to mean a complaint which is “not reasonably arguable” ( Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [45]; BDK v Department of Education and Communities [2015] NSWCATAP 129 at [63]; Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22]) and the term…
Director-General, Department of Community Services v MM
[2003] NSWSC 1241 Para 21

…1; [1997] HCA 30; by the NSW Court of Appeal in Mohamed ; by the NSW Supreme Court in Director-General, Department of Community Services and Anor [2003] NSWSC 1241 and Commissioner of Police, NSW Police Service v Estate Edward John Russell & Ors [2001] NSWSC 745; by Appeal Panels of the ADT in Commissioner of Correc…
Margan v University of Technology, Sydney
[2003] NSWADTAP 65 Para 7

…rather than to whether the complaint was one within the provisions of the Act at all. See also Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 ( Margan ) at [9]. In these proceedings I will take the term "lacking in substance” to mean a complaint which is “not reasonably arguable” ( Owners Corpora…
Purvis v New South Wales
[2003] HCA 62 Para 49

…In Purvis v New South Wales (2003) 217 CLR 92; [2003] HCA 62 the High Court (Gummow, Hayne and Heydon JJ) stated that in undertaking the comparison required to determine whether less favourable treatment is established, it is necessary to identify the “circumstances attending the treatment given ... to the [comp…
Commissioner of Police, NSW Police Service v Estate of Edward John Russell
[2001] NSWSC 745 Para 21

…al, Department of Community Services and Anor [2003] NSWSC 1241 and Commissioner of Police, NSW Police Service v Estate Edward John Russell & Ors [2001] NSWSC 745; by Appeal Panels of the ADT in Commissioner of Corrective Services v Dezfouli [2008] NSWADTAP 85; State of NSW (NSW Police Force) v Whitfield (EOD) [201…
Seltsam Pty Ltd v McGuiness
[2000] NSWCA 29 Para 60

…is straightforward. A review of the authorities suggests otherwise. As explained by Spigelman CJ in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [84]-[88], while there is a difference between the two, it can be difficult to distinguish between permissible inference and conjecture: “Characte…
IW v City of Perth
[1997] HCA 30 Para 21

…considered by the High Court in Waters v Public Transport Corporation (1991) 173 CLR 349; [1991] HCA 49 and IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30; by the NSW Court of Appeal in Mohamed ; by the NSW Supreme Court in Director-General, Department of Community Services and Anor [2003] NSWSC 1241 and Co…
Waters v Public Transport Corporation
[1992] HCA 9 Para 21

…ntext of anti-discrimination legislation. The meaning of that term has been considered by the High Court in Waters v Public Transport Corporation (1991) 173 CLR 349; [1991] HCA 49 and IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30; by the NSW Court of Appeal in Mohamed ; by the NSW Supreme Court in Director-Gener…
Waters v Public Transport Corporation
[1991] HCA 49 Para 21

…mination legislation. The meaning of that term has been considered by the High Court in Waters v Public Transport Corporation (1991) 173 CLR 349; [1991] HCA 49 and IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30; by the NSW Court of Appeal in Mohamed ; by the NSW Supreme Court in Director-General, Department…
General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69 Para 18

…ly demonstrated that there is no arguable cause of action: see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 129, per Barwick CJ; [1964] HCA 69; and Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91, per Dixon J; [1949] HCA 1.…
Dey v Victorian Railways Commissioners
[1949] HCA 1 Para 18

…112 CLR 125; [1964] HCA 69 at 129, per Barwick CJ; [1964] HCA 69; and Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91, per Dixon J; [1949] HCA 1.…
Bradshaw v McEwans Pty Ltd
[1951] HCA 480 Para 56

…atment was his race. While acknowledging that a finding of causation may be made in the absence of direct evidence, citing Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Marshall v Prescott [2015] NSWCA 110 at [83], Sydney Trains points out that even if “[t]he circumstances appearing in evidence give rise to a reason…
Obeita v Australian College of Professionals PL
[2014] NSWCATAP 38 Para 8

…ssein relies at their highest: Kitoko v Sydney Local Health District [2018] NSWCATAP 38 at [41]; Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [27]; Alchin at [19]-[26].…
NSWCATAP 179State of New South Wales v Whiteoak
[2014] NSWCATAP 99 Para 21

…P 85; State of NSW (NSW Police Force) v Whitfield (EOD) [2012] NSWADTAP 27; and by an Appeal Panel of NCAT in State of New South Wales v Whiteoak [2014] NSWCATAP 99.…
[2016] NSWCATAP 256
[2016] NSWCATAP 256 Para 18

…int referred by the President under the Act, must be exercised with caution: Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256 at [24]; Margan at [15]. That approach is consistent with the High Court’s admonition that a party should not be denied the right to prosecute a claim…

Legislation cited in this decision · 4

Anti-Discrimination Act 1977 (NSW)
1 mention (from Para 4)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 16)
Equal Opportunity Act 1984 (WA)
1 mention (from Para 22)
Town Planning and Development Act 1928 (WA)
1 mention

Medium Neutral Citation:	Hussein v Sydney Trains [2020] NSWCATAD 155
Hearing dates:	27 April 2020
Date of orders:	19 June 2020
Decision date:	19 June 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Britton, Principal Member
Decision:	The application made by Sydney Trains to dismiss the Complaint is refused.
Catchwords:	HUMAN RIGHTS — discrimination — whether power to dismiss complaint summarily under s 102 of the Anti-Discrimination Act 1977 should be exercised WORDS AND PHRASES — meaning of “misconceived” and “lacking in substance” EVIDENCE — drawing of inferences – permissible inference v conjecture and speculation
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Alchin v Rail Corporation NSW [2012] NSWADT 142 BDK v Department of Education and Communities [2015] NSWCATAP 129 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Marshall v Prescott [2015] NSWCA 110 Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 Commissioner of Corrective Services v Dezfouli [2008] NSWADTAP 85 Commissioner of Police v Mohamed [2009] NSWCA 432 Commissioner of Police, NSW Police Service v Estate Edward John Russell & Ors [2001] NSWSC 745 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; [1949] HCA 1 Director-General, Department of Community Services and Anor [2003] NSWSC 1241 Flounders v Millar [2007] NSWCA 238 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 Kitoko v Sydney Local Health District [2017] NSWCATAD 209 Kitoko v Sydney Local Health District [2018] NSWCATAP 38 Langley v Niland & Anor (1981) 2 NSWLR 104 Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 Purvis v New South Wales (2003) 217 CLR 92; [2003] HCA 62 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256 State of New South Wales v Whiteoak [2014] NSWCATAP 99 State of NSW (NSW Police Force) v Whitfield (EOD) [2012] NSWADTAP 27 Waters v Public Transport Corporation (1991) 173 CLR 349; [1991] HCA 49
Texts Cited:	None cited
Category:	Procedural and other rulings
Parties:	Qurban Ali Hussein (Applicant) Sydney Trains (Respondent)
Representation:	Counsel: M Baroni (Respondent) Solicitors: Applicant (Self Represented) Bartier Perry (Respondent)
File Number(s):	2019/00300885
Publication restriction:	Nil